Man Convicted Of Assault Receives Ok For New Trial

May 9, 1986|By Rich Pollack, Staff Writer

A Boca Raton man who was convicted of assault and weapons charges in February by an unusual majority vote rather than the normal unanimous jury vote will get a new trial, unless an appeals court intervenes, a judge ruled Thursday.

At a hearing Thursday, Palm Beach County Circuit Judge Marvin Mounts granted a motion for a new trial filed by attorneys on behalf of John Sweeney.

Sweeney`s attorney Robert Foley had argued that the majority verdict, which came after a jury had deadlocked, should not be binding on the defendant.

``It`s questionable whether a verdict can be less than unanimous in Florida,`` Foley said.

After the jury deadlocked during the February trial, Mounts asked Sweeney if he would accept a majority verdict.

Sweeney, according to attorneys, agreed, and the jury returned a 4-2 verdict on charges of aggravated assault and a 5-1 verdict on charges of possession of a firearm during the commission of a felony.

After Thursday`s hearing, prosecutor Bill Wallshein said his office is considering appealing Mounts` decision throwing out the conviction.

``We can appeal the judge`s ruling for a new trial,`` he said.

Wallshein said there have not been any rulings on the issue by higher courts.

``There`s no case law on it,`` he said.

In arguing for the new trial, Foley pointed out that judges are required to disclose all communications from a jury in open court. He said that Mounts knew what the jury`s vote was before Sweeney elected to take the majority vote.

Wallshein, however, argued that if that were the case, Sweeney would have known that the majority was in favor of convicting him and would have elected not to go with a majority vote.

The charges against Sweeney, 52, stem from a December 1984 incident near Sweeney`s home on Northwest Second Avenue.

According to Foley, Sweeney was in his home when his Doberman pinscher began barking loudly. Foley said Sweeney, concerned because the neighborhood had been plagued by burglars, loaded a gun with small pellets and went outside.

His dog ran toward a group of people in a dark area nearby, Foley said. The attorneys said Sweeney did not know that there were police officers in the area who were tending to a woman following a domestic argument.

Foley said Sweeney was told to call off the dog and was told that if he didn`t the dog would be stopped.

According to Foley, Sweeney took out his gun.

Wallshein said police told him several times to put the gun down and he finally complied.